EXHIBIT 10.6
FIRST RIGHT OF REFUSAL
This Agreement dated this 26th day of September 1997 is between Primus
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Communications Corporation ("HQ") and Xxxxxx X.X. ("KK").
It is the parties' intent to enter into a long term exclusive distribution
arrangement pursuant to which KK shall be the exclusive distributor of all Asian
language versions of HQ's products. This first right of refusal is an interim
arrangement to provide KK with necessary assurances until such time as such
agreement has been entered into.
With respect to the long-term distribution arrangement (but not the first
right of refusal that is the subject of this agreement) this letter is only an
expression of present intent and does not create or impose any binding legal
duties or obligations on either of KK or HQ. This Agreement does not affect in
any way any rights or obligations which may or may not exist regarding such long
term distribution arrangement.
Now therefore, for good and valuable consideration, receipt of which is
acknowledged by the parties, the parties agree as follows:
HQ hereby grants KK the first right of refusal as provided below.
Prior to entering into any agreement with any person or entity for the
distribution of Asian language equivalents of HQ's products, HQ shall offer
substantially identical terms to KK. HQ shall notify KK of such terms. Such
notice shall contain all key terms of the proposed agreement. KK shall treat
such notice and any related communications as confidential information under the
Non-Disclosure Agreement between KK and HQ. If KK does not notify HQ that it
accepts such terms within thirty (30) days of such notice, then HQ shall be
permitted to enter into an agreement on such key terms and no other key terms
during the three (3) month period from the date of expiration of such notice.
Except as set forth above, and except for that certain Exclusive Distribution
License Agreement, dated of even date herewith, between HQ and Trans Cosmos,
Inc. ("TCI"), HQ shall not enter into any other agreements for distribution of
Asian language products, but may market and distribute such products directly.
This first right of refusal shall terminate upon any of the following events:
1. If any member of the KK Group (as defined below) challenges in any legal or
arbitration proceeding the validity of the copyright, patents, trademarks,
or trade secrets of HQ, then HQ may immediately terminate this right of
first refusal by notice to KK. "KK Group" means KK, TCI, Best Career
Company ("Best") or any entity controlling, controlled by or under common
control of TCI and/or Best.
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2. If any member of the KK Group commercially markets or distributes any
product (a "KK Product") that is, or if marketed and distributed in the
English language would be competitive with HQ's SolutionBuilder(R) and/or
SolutionPublisher(R) software products, and if any marketing and
distribution of the KK Product continues for a period in excess of thirty
(30) days from notice from HQ to KK requesting that such marketing and
distribution cease, then HQ may immediately terminate this First Right of
Refusal by notice to KK.
3. If TCI and/or Best transfers any of their interest in KK to a third party
which is not a TCI Affiliate (as defined below), HQ may immediately
terminate this right of first refusal by notice to KK. "TCI Affiliate"
means any entity in which TCI owns equity possessing at least eighty
percent (80%) of the total combined voting power of all classes of equity
entitled to vote
Any notice required or permitted to be given under this Agreement shall be
effective if it is in writing and sent prepaid by internationally recognized
private courier (e.g., DHL) and by fax, to the appropriate party hereto at the
address set forth below. Either party may change its address for receipt of
notice by notice to the other party in accordance with this section.
If to HQ: Primus Communications Corporation
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000 XXX
Attn: President and Chief Executive Officer
Fax: (000) 000-0000
with a copy to: Primus Communications Corporation
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000 XXX
Attn: Corporate Attorney
Fax: (000) 000-0000
If to KK: Xxxxxx X.X.
Xxxxx Xxxxxx Xxxxx, 0xx Xxxxx
0-0-00, Xxxxx
Xxxxx 000, Xxxxx
Fax: 00-0000-0000
With a copy to: Trans Cosmos Inc.
0-0-0 Xxxxxxx
Xxxxxx-xx
Xxxxx 000, Xxxxx
Fax: 00-0000-0000
and
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With a copy to: Xxxxxx Pepper & Shefelman PLLC
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxx
Fax: (000) 000-0000
The dispute resolution and other provisions contained in Schedule 1 to this
Agreement shall be incorporated into and shall for all purposes be deemed part
of this Agreement.
This Agreement may be executed in counterparts, which taken together shall
constitute one single agreement between the parties.
PRIMUS COMMUNICATIONS CORPORATION
/s/ Xxxxxx X. Xxxxxx
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By: Xxxxxx X. Xxxxxx
Its President and Chief Executive
Officer
XXXXXX X.X.
/s/ SIGNATURE ILLEGIBLE
--------------------------------
By
Its President
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SHEDULE 1
Dispute Resolution And Other Provisions
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1. Dispute Resolution.
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1.1 Governing Law; English Language to Apply. This Agreement shall be governed
by and interpreted in accordance with the internal laws of the State of
Washington, and, where such laws are preempted by the laws of the United States,
by the internal laws of the United States, in each case without regard to (a)
conflicts of laws principles and renvoi, and (b) the applicability, if any, of
the United Nations Convention on Contracts for the International Sale of Goods.
The governing language for this Agreement, for the transactions contemplated
hereby, for any notices, instruments or other documents or media transmitted or
delivered hereunder, and for the negotiation and/or resolution of any dispute or
other matter between the parties, shall be the English language. In the event
of any conflict between the provisions of any instrument, document, or other
media and an English version thereof, the provisions of the English version
shall prevail. KK hereby waives all and any rights it may have under any law to
have the Agreement written in any language other than English. In transactions
between the parties, a decimal point shall be indicated by a period, and not by
a comma. Notice periods shall be determined by reference to the local time of
the notice recipient.
1.2 Mediation. In the event of any controversy or claim arising out of or
relating to this Agreement or the breach or interpretation thereof, the parties
shall, upon not less than thirty (30) days notice from either one to the other,
submit themselves and the subject-matter of the dispute to mediation before an
independent mediator to be appointed by the head office of the American
Arbitration Association. Costs of mediation shall be borne equally between the
parties.
1.3 Arbitration. In the event that the parties remain in dispute following the
mediation, the controversy or claim shall be determined by arbitration in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association by a single, disinterested arbitrator appointed in accordance with
such Rules. The determination of the arbitrator shall be final, conclusive and
binding. Judgment upon the award rendered may be entered in any court of any
state or country having jurisdiction.
1.4 Conduct. Each party shall ensure that any mediation and arbitration are
conducted as speedily as is reasonably possible, and that all and any
information disclosed during or in connection with the arbitration is treated by
each party with the strictest confidence.
1.5 Interim and Permanent Relief. Upon the application of either party to this
Agreement, and whether or not an arbitration or mediation has yet been
initiated, all courts having jurisdiction over one or more of the parties are
authorized to: (i) issue and enforce in any lawful manner such temporary
restraining orders, preliminary injunctions and other interim measures of relief
as may be necessary to prevent harm to a party's interests or as otherwise may
be appropriate pending the conclusion of arbitration proceedings pursuant to
this Agreement; and (ii) enter and enforce in any lawful manner such judgments
for permanent equitable relief as may be necessary to prevent harm to a party's
interests or as otherwise may be appropriate following the issuance of arbitral
awards pursuant to this Agreement.
1.6 Venue. Any mediation or arbitration conducted under or in connection with
this Agreement shall take place in Seattle, Washington at a time and location to
be determined by the mediator or arbitrator, as the case may be.
1.7 Legal Expenses. If any proceeding is brought by either party to enforce or
interpret any term or provision of this Agreement, the substantially prevailing
party in such proceeding shall be entitled to recover, in addition to all other
relief arising out of this Agreement, such party's reasonable attorneys' and
other experts' (including without limitation accountants) fees and expenses.
2. Waiver. No waiver of or with respect to any provision of this Agreement,
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nor consent by a party to the breach of or departure from any provision of this
Agreement, shall in any event be binding on or effective against such party
unless it be in writing and signed by such party, and then such waiver shall be
effective only in the specific instance and for the purpose for which given.
3. Captions and Headings. The captions and headings are inserted in this
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Agreement for convenience only, and shall not be deemed to limit or describe the
scope or intent of any provision of this Agreement.
4. Severability; Invalidity. If any provision of this Agreement is held to be
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invalid, such invalidity shall not render invalid the remainder of this
Agreement or the remainder of which such invalid provision is a part. If any
provision of this Agreement is so broad as to be held unenforceable, such
provision shall be interpreted to be only so broad as is enforceable.
5. Assignment. KK shall not assign any of its rights under this Agreement
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without the prior written consent of Primus, which shall not be unreasonably
withheld. Subject to the foregoing restriction on assignment by KK, this
Agreement shall be binding upon, inure to the benefit of and be enforceable by
the parties and their respective successors and assigns.
6. Entire Agreement; Amendments. This Agreement constitutes and embodies the
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entire agreement and understanding between the parties with respect to the
subject matter hereof and supersedes all prior or contemporaneous written,
electronic or oral
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communications, agreements or understandings between the parties with respect
thereto. This Agreement may not be modified or amended except by a written
instrument executed by the parties. In the event of any conflict between the
provisions of this Agreement and the terms of any form of purchase order or
invoice, the provisions of this Agreement shall prevail.
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